6.  The applicant was born in 1946. When he lodged his application, he was detained in Bochum, Germany.
7.  In 1969 the applicant, a national of Bosnia and Herzegovina of Serb origin, entered Germany, where he legally resided until the beginning of 1992. He then returned to Kostajnica, which forms part of the city of Doboj in Bosnia, where he was born.
8.  On 16 December 1995 the applicant was arrested when entering Germany and placed in pre-trial detention on the ground that he was strongly suspected of having committed acts of genocide.
9.  On 28 February 1997 the applicant’s trial, on the charge of having committed genocide in the Doboj region between May and September 1992, started before the Düsseldorf Court of Appeal (Oberlandesgericht) acting as a court of first instance.
10.  In the course of the proceedings the Court of Appeal heard evidence from six witnesses called by the prosecution, who had to be summoned abroad.
11.  On 18 June 1997 the applicant requested the Court of Appeal to call and hear evidence from eight witnesses from Kostajnica for the purpose of proving the fact that he had been placed in pre-trial detention in Doboj between 14 May and 15 August 1992 and could not therefore have committed the crimes he was accused of. On 10 July 1997 the applicant sought leave to summon another seventeen witnesses from Kostajnica to prove his allegation.
12.  On 18 August 1997 the Court of Appeal dismissed the applicant’s requests to summon these witnesses. Relying on Article 244 § 5, second sentence, of the Code of Criminal Procedure (see paragraph 39 below), it considered the testimony of these witnesses to be of little evidential value. Seven of these witnesses had made written statements which had already been read out in court. Only one of them had actually claimed to have visited the applicant in prison. Having regard to the evidence already taken, the court could exclude the possibility that the testimony of the witnesses named by the applicant, if heard in person, might influence the court’s assessment of the evidence. It pointed out that more than twenty witnesses who had already been heard in court, including two journalists who had not been victims of the crimes the applicant was accused of, had seen the applicant in different places outside prison during the time he claimed to have been detained. The documents submitted by the applicant in relation to the beginning and end of his detention in Doboj did not warrant a different conclusion, as they had obviously been signed by a person whom the applicant knew well.
13.  On 8 September 1997 the applicant requested the court to call three witnesses from Doboj in order to prove that he had been detained between 14 May and 15 August 1992. He also requested an inspection of the scene of the crime (Augenscheinseinnahme) in Grabska or, alternatively, that a topographical map be drawn up in order to prove that the witnesses’ statements concerning his purported acts in Grabska were untrustworthy.
14.  On 12 September 1997 the Court of Appeal rejected the applicant’s requests. As regards the refusal to summon the three witnesses named, the court, again relying on Article 244 § 5 of the Code of Criminal Procedure, found that the testimony of these witnesses would be of little evidential value. Having heard the evidence given by other witnesses, it was satisfied that the applicant had not been detained at the material time. It further considered an inspection of the scene of the crime or the drawing-up of a topographical map thereof to be unobtainable evidence (unerreichbare Beweismittel) within the meaning of Article 244 § 3 of the Code of Criminal Procedure (see paragraph 38 below), which it therefore did not have to accept.
15.  In its judgment of 26 September 1997, the Düsseldorf Court of Appeal convicted the applicant on eleven counts of genocide (Article 220a nos. 1 and 3 of the Criminal Code – see paragraph 34 below) and for the murder of twenty-two people in one case, seven people in another case, and one person in a third case. In the remaining cases, he was convicted on several counts of dangerous assault and deprivation of liberty. It sentenced the applicant to life imprisonment and stated that his guilt was of a particular gravity (see paragraph 37 below).
16.  The court found that the applicant had set up a paramilitary group, with whom he had participated in the ethnic cleansing ordered by the Bosnian Serb political leaders and the Serb military in the Doboj region. He had in particular participated in the arrest, detention, assault and ill-treatment of male Muslims of three villages in Bosnia at the beginning of May and June 1992. He had killed several inhabitants of these villages. He had in particular shot twenty-two inhabitants of the village of Grabska – women and disabled and elderly people – in June 1992. Subsequently, the applicant, together with the paramilitary group he had led, had chased some forty men from their home village and had ordered them to be ill-treated and six of them to be shot. A seventh injured person had died from being burnt with the corpses of the six people shot. In September 1992 the applicant had killed a prisoner, who was being ill-treated by soldiers in the Doboj prison, with a wooden truncheon in order to demonstrate a new method of ill-treatment and killing.
17.  The court stated that it had jurisdiction over the case pursuant to Article 6 no. 1 of the Criminal Code (see paragraph 34 below). There was a legitimate link for criminal prosecution in Germany, as this was in accordance with Germany’s military and humanitarian missions in Bosnia and Herzegovina and the applicant had resided in Germany for more than twenty years and had been arrested there. Furthermore, agreeing with the findings of an expert in public international law, the court found that the German courts were not debarred under public international law from trying the case. In particular, neither Article VI of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), nor Article 9 of the 1993 Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY Statute) (see paragraphs 48-49 below) excluded the jurisdiction of German courts over acts of genocide committed outside Germany by a foreigner against foreigners. The court considered that this view was confirmed by the fact that the International Criminal Tribunal for the former Yugoslavia (ICTY) had stated that it was not willing to take over the applicant’s prosecution.
18.  Furthermore, the court found that the applicant had acted with intent to commit genocide within the meaning of Article 220a of the Criminal Code. Referring to the views expressed by several legal writers, it stated that the “destruction of a group” within the meaning of Article 220a of the Criminal Code meant destruction of the group as a social unit in its distinctiveness and particularity and its feeling of belonging together (“Zerstörung der Gruppe als sozialer Einheit in ihrer Besonderheit und Eigenart und ihrem Zusammengehörigkeitsgefühl”); a biological-physical destruction was not necessary. It concluded that the applicant had therefore acted with intent to destroy the group of Muslims in the north of Bosnia, or at least in the Doboj region.
19.  On 30 April 1999 the Federal Court of Justice, following an appeal by the applicant on points of law and after a hearing, convicted the applicant on one count of genocide and thirty counts of murder. It sentenced him to life imprisonment and stated that his guilt was of a particular gravity.
20.  Endorsing the reasons given by the Court of Appeal, it found that German criminal law was applicable to the case and that the German courts consequently had jurisdiction over it by virtue of Article 6 no. 1 of the Criminal Code. It found, in particular, that no rule of public international law prohibited the applicant’s conviction by the German criminal courts in accordance with the principle of universal jurisdiction (Universalitäts‑/Weltrechtsprinzip) enshrined in that Article. It conceded that the said principle had not been expressly laid down in Article VI of the Genocide Convention, despite earlier drafts of the Genocide Convention in which it had been proposed to do so. However, the said Article did not prohibit persons charged with genocide from being tried by national courts other than the tribunals of the State in the territory of which the act was committed. Any other interpretation would not be reconcilable with the erga omnes obligation undertaken by the Contracting States in Article I of the Genocide Convention to prevent and punish genocide (see paragraph 48 below). The aforesaid interpretation of the Genocide Convention was also confirmed by Article 9 § 1 of the ICTY Statute, which provided for concurrent jurisdiction of the ICTY and all other national courts.
21.  Moreover, the Federal Court of Justice found that the German courts also had jurisdiction pursuant to Article 7 § 2 no. 2 of the Criminal Code (see paragraph 34 below).
22.  The Federal Court of Justice did not expressly deal with the applicant’s complaint that the Court of Appeal, in its decision of 18 August 1997, had refused to summon abroad any of the defence witnesses he had named on the basis of Article 244 § 5 of the Code of Criminal Procedure. However, it referred in general to the submissions of the Federal Public Prosecutor (Generalbundesanwalt), who had argued that the applicant’s appeal was inadmissible in this respect, as he had failed to set out the relevant facts in sufficient detail. As regards the applicant’s complaint that the Court of Appeal, in its decision of 12 September 1997, had refused to summon three further defence witnesses abroad, the Federal Court of Justice considered his complaint to be inadmissible, as he had not sufficiently set out the relevant facts and had not provided sufficient reasons in his appeal. The court further referred to the Federal Public Prosecutor’s submissions regarding the applicant’s complaint that the Court of Appeal had refused to have a topographical map drawn up. According to the Federal Public Prosecutor, the applicant’s complaint was ill-founded in this respect, especially as the Court of Appeal already had a video of the relevant locality.
23.  The Federal Court of Justice upheld the Court of Appeal’s finding that the applicant had intended to commit genocide within the meaning of Article 220a of the Criminal Code, but found that his actions as a whole had to be considered as only one count of genocide. It referred to the wording of Article 220a § 1 no. 4 (imposition of measures which are intended to prevent births within the group) and no. 5 (forcible transfer of children of the group into another group) in support of its view that genocide did not necessitate an intent to destroy a group physically, but that it was sufficient to intend its destruction as a social unit.
24.  On 12 December 2000 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint.
25.  According to the Constitutional Court, the criminal courts had not violated any provision of the Basic Law by establishing their jurisdiction pursuant to Article 6 no. 1 of the Criminal Code taken in conjunction with Article VI of the Genocide Convention. The principle of universal jurisdiction afforded a reasonable link to deal with subject matter arising outside the territory of Germany, while observing the duty of non-intervention (Interventionsverbot) under public international law. The competent courts’ reasoning, namely, that Article 6 no. 1 of the Criminal Code taken in conjunction with Article VI of the Genocide Convention entitled them to examine the applicant’s case, was not arbitrary. It could properly be reasoned that the Genocide Convention, while not expressly regulating the principle of universal jurisdiction, provided that the Contracting Parties were not obliged to prosecute perpetrators of genocide, but had jurisdiction to do so. In fact, genocide was the classic subject matter to which the principle of universal jurisdiction applied. The criminal courts’ reasoning did not interfere with Bosnia and Herzegovina’s personal or territorial sovereignty, as that State had expressly refrained from requesting the applicant’s extradition.
26.  Pointing out that in the case of an admissible constitutional complaint it was entitled to examine the act complained of under all constitutional angles, the Federal Constitutional Court further found that the applicant’s right to a fair trial as guaranteed by the Basic Law had not been violated. There was no doubt that Article 244 §§ 3 and 5 of the Code of Criminal Procedure were constitutional. The legislature was not obliged to set up specific rules of procedure for certain criminal offences. The right to a fair trial did not grant the applicant a right to have certain evidence taken, such as calling witnesses who had to be summoned abroad.
27.  In respect of the interpretation of Article 220a of the Criminal Code, the Federal Constitutional Court found that there had been no violation of the principle that criminal law was not to be applied retroactively as guaranteed by Article 103 § 2 of the Basic Law. It stated that the way in which the Court of Appeal and the Federal Court of Justice had construed the notion of “intent to destroy” in the said Article was foreseeable. Moreover, the interpretation conformed to that of the prohibition of genocide in public international law – in the light of which Article 220a of the Criminal Code had to be construed – by the competent tribunals, several scholars and as reflected in the practice of the United Nations, as expressed, inter alia, in Resolution 47/121 of the General Assembly (see paragraph 41 below).
28.  On 3 July 2002 the Düsseldorf Court of Appeal declared inadmissible a request by the applicant to reopen the proceedings. The fact that one of the witnesses who had been examined by the Court of Appeal, and who was the only person claiming to have been an eyewitness to the applicant murdering twenty-two people in Grabska, was suspected of perjury did not warrant a reopening. Even assuming that the said witness had invented the allegations against the applicant, the latter would still have to be sentenced to life imprisonment for genocide and on eight counts of murder.
29.  On 20 December 2002 (decision served on 28 January 2003) the Federal Court of Justice decided that the applicant’s request to reopen the proceedings was admissible in so far as it concerned the murder of twenty-two people in Grabska. It pointed out, however, that, even assuming that the applicant’s conviction on twenty-two counts of murder was not upheld, his conviction for genocide and on eight counts of murder, and therefore his life sentence, including the finding that his guilt was of a particular gravity, would prevail.
30.  In a constitutional complaint of 28 February 2003, the applicant claimed that the decisions of the Düsseldorf Court of Appeal and the Federal Court of Justice concerning the reopening of the proceedings violated his right to liberty as guaranteed by the Basic Law. He argued that they had erred in their finding that, in the proceedings to have the case reopened, the question whether the applicant’s guilt was of a particular gravity did not have to be assessed anew.
31.  On 22 April 2003 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint.
32.  On 21 June 2004 the Düsseldorf Court of Appeal decided to reopen the proceedings in respect of the applicant’s conviction for shooting twenty-two people in Grabska. It found that the only person claiming to have been an eyewitness to these murders was guilty of perjury at least in respect of some other statements. Therefore, it could not rule out the possibility that the judges then adjudicating the case would have acquitted the applicant on that charge if they had known that some statements by this witness had been false.
33.  In so far as the applicant’s request to reopen the proceedings was granted, the Court of Appeal discontinued the proceedings. It argued that the sentence to be expected by the applicant, if he was again found guilty of having murdered twenty-two people in Grabska, was not significantly greater than the sentence which had already been imposed upon him with binding effect for genocide. Consequently, the judgment of the Düsseldorf Court of Appeal of 26 September 1997 remained final regarding the applicant’s conviction for genocide and on eight counts of murder, including the court’s finding that his guilt was of a particular gravity.
34.  The relevant provisions of the Criminal Code, in their versions in force at the material time, on the jurisdiction of German courts, the crime of genocide and the gravity of a defendant’s guilt provided as follows:
 
Article 6Acts committed abroad against internationally protected legal interests
“German criminal law shall further apply, regardless of the law applicable at the place of their commission, to the following acts committed abroad: 2.  German criminal law shall apply to other offences committed abroad if the act is punishable at the place of its commission or if the place of its commission is not subject to enforcement of criminal law and if the perpetrator
...
(2)  was a foreigner at the time of the act, was found to be in Germany and, although the law on extradition would permit extradition for such an act, is not extradited because a request for extradition is not made, is rejected or the extradition is not enforceable.”
Article 220aGenocide
“1.  Whoever, acting with the intent to destroy, in whole or in part, a national, racial, religious or ethnical group as such,
(1)  kills members of the group,
(2)  causes serious bodily or mental harm ... to members of the group,
(3)  places the group in living conditions capable of bringing about their physical destruction in whole or in part,
(4)  imposes measures which are intended to prevent births within the group,
(5)  forcibly transfers children of the group into another group,
shall be punished with life imprisonment.
...”
35.  Article 220a of the Criminal Code was inserted into the German Criminal Code by the Act of 9 August 1954 on Germany’s accession to the Genocide Convention and came into force in 1955. Article 6 no. 1 and Article 220a of the Criminal Code ceased to be effective on 30 June 2002 when the Code on Crimes against International Law (Völkerstrafgesetzbuch) came into force. Pursuant to Article 1 of the new Code, it applies to criminal offences against international law such as genocide (see Article 6 of the new Code) even when the offence was committed abroad and bears no relation to Germany.
36.  The applicant is the first person to be convicted of genocide by German courts under Article 220a since the incorporation of that Article into the Criminal Code. At the time the applicant committed his acts in 1992, a majority of scholars took the view that genocidal “intent to destroy a group” under Article 220a of the Criminal Code had to be aimed at the physical-biological destruction of the protected group (see, for example, A. Eser in Schönke/Schröder, Strafgesetzbuch – Kommentar, 24th edition, Munich 1991, Article 220a, §§ 4-5 with further references). However, a considerable number of scholars were of the opinion that the notion of destruction of a group as such, in its literal meaning, was wider than a physical-biological extermination and also encompassed the destruction of a group as a social unit (see, in particular, H.-H. Jescheck, Die internationale Genocidium-Konvention vom 9. Dezember 1948 und die Lehre vom Völkerstrafrecht, ZStW 66 (1954), p. 213, and B. Jähnke in Leipziger Kommentar, Strafgesetzbuch, 10th edition, Berlin, New York 1989, Article 220a, §§ 4, 8 and 13).
37.  Under Article 57a § 1 of the Criminal Code, a sentence to life imprisonment may only be suspended on probation if, in particular, fifteen years of the sentence have been served and the particular gravity of the defendant’s guilt (besondere Schwere der Schuld) does not warrant the continued execution of the sentence.
38.  Pursuant to Article 244 § 3 of the Code of Criminal Procedure, an application to adduce evidence may be rejected only under the conditions set out in that Article. It may be dismissed, inter alia, if the evidence is unobtainable (unerreichbar).
39.  Article 244 § 5, second sentence, of the Code of Criminal Procedure lays down special conditions for rejecting an application to examine a witness who would have to be summoned abroad. These conditions are less strict than those for rejecting an application to hear evidence from a witness who can be summoned in Germany. It is sufficient that the court, in the proper exercise of its discretion, deems the examination of the witness not to be necessary for establishing the truth. 3.  Comparative and public international law and practice
(a)  Definition and scope of the crime of genocide
(i)  The 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention)
40.  The relevant provision of the Genocide Convention, which came into force for Germany on 22 February 1955, provides:
Article II
“In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a)  Killing members of the group;
(b)  Causing serious bodily or mental harm to members of the group;
(c)  Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d)  Imposing measures intended to prevent births within the group;
(e)  Forcibly transferring children of the group to another group.”
(ii)  Resolution of the United Nations General Assembly
41.  In its Resolution 47/121 (no. A/RES/47/121) of 18 December 1992 concerning the situation in Bosnia and Herzegovina in 1992, the United Nations General Assembly stated:
“Gravely concerned about the deterioration of the situation in the Republic of Bosnia and Herzegovina owing to intensified aggressive acts by the Serbian and Montenegrin forces to acquire more territories by force, characterized by a consistent pattern of gross and systematic violations of human rights, a burgeoning refugee population resulting from mass expulsions of defenceless civilians from their homes and the existence in Serbian and Montenegrin controlled areas of concentration camps and detention centres, in pursuit of the abhorrent policy of “ethnic cleansing”, which is a form of genocide, ...”
(iii)  Case-law of the International Criminal Tribunal for the former Yugoslavia
42.  In the case of Prosecutor v. Krstić, IT-98-33-T, judgment of 2 August 2001, §§ 577-80, the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY), expressly diverging from the wider interpretation of the notion of “intent to destroy” by the United Nations General Assembly and the Federal Constitutional Court in its judgment of 12 December 2000 in the present case, found as follows with regard to the Genocide Convention:
“577.  Several recent declarations and decisions, however, have interpreted the intent to destroy ... so as to encompass evidence relating to acts that involved cultural and other non-physical forms of group destruction. 579.  The Federal Constitutional Court of Germany said in December 2000 that
the statutory definition of genocide defends a supra-individual object of legal protection, i.e. the social existence of the group ... the intent to destroy the group ... extends beyond physical and biological extermination ... The text of the law does not therefore compel the interpretation that the culprit’s intent must be to exterminate physically at least a substantial number of the members of the group. ... 580.  The Trial Chamber is aware that it must interpret the Convention with due regard for the principle of nullum crimen sine lege. It therefore recognises that, despite recent developments, customary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group. Hence, an enterprise attacking only the cultural or sociological characteristics of a human group in order to annihilate these elements which give to that group its own identity distinct from the rest of the community would not fall under the definition of genocide. The Trial Chamber however points out that where there is physical or biological destruction there are often simultaneous attacks on the cultural and religious property and symbols of the targeted group as well, attacks which may legitimately be considered as evidence of an intent to physically destroy the group.”
43.  The Trial Chamber’s judgment was upheld in this respect by the judgment of 19 April 2004 rendered by the Appeals Chamber of the ICTY, IT-98-33-A, which found:
“25.  The Genocide Convention, and customary international law in general, prohibit only the physical or biological destruction of a human group. ... The Trial Chamber expressly acknowledged this limitation, and eschewed any broader definition. ...” 33.  ... The fact that the forcible transfer does not constitute in and of itself a genocidal act does not preclude a Trial Chamber from relying on it as evidence of the intentions of members of the VRS Main Staff. The genocidal intent may be inferred, among other facts, from evidence of ‘other culpable acts systematically directed against the same group’.”
44.  Similarly, in the case of Prosecutor v. Kupreškić and Others (IT‑95‑16-T, judgment of 14 January 2000, § 751), which concerned the killing of some 116 Muslims in order to expel the Muslim population from a village, the ICTY found:
“Persecution is only one step away from genocide – the most abhorrent crime against humanity – for in genocide, the persecutory intent is pushed to its utmost limits through the pursuit of the physical annihilation of the group or of members of the group. In the crime of genocide the criminal intent is to destroy the group or its members; in the crime of persecution the criminal intent is instead to forcibly discriminate against a group or members thereof by grossly and systematically violating their fundamental human rights. In the present case, according to the Prosecution – and this is a point on which the Trial Chamber agrees – the killing of Muslim civilians was primarily aimed at expelling the group from the village, not at destroying the Muslim group as such. This is therefore a case of persecution, not of genocide.”
(iv)  Case-law of the International Court of Justice
45.  In its judgment of 26 February 2007 in the case of Bosnia and Herzegovina v. Serbia and Montenegro (“Case concerning application of the Convention on the Prevention and Punishment of the Crime of Genocide”), the International Court of Justice (ICJ) found under the heading of “intent and ‘ethnic cleansing’” (at § 190):
“The term ‘ethnic cleansing’ has frequently been employed to refer to the events in Bosnia and Herzegovina which are the subject of this case ... General Assembly resolution 47/121 referred in its Preamble to ‘the abhorrent policy of “ethnic cleansing”, which is a form of genocide’, as being carried on in Bosnia and Herzegovina. ... It [i.e., ethnic cleansing] can only be a form of genocide within the meaning of the Convention, if it corresponds to or falls within one of the categories of acts prohibited by Article II of the Convention. Neither the intent, as a matter of policy, to render an area ‘ethnically homogeneous’, nor the operations that may be carried out to implement such policy, can as such be designated as genocide: the intent that characterizes genocide is ‘to destroy, in whole or in part’ a particular group, and deportation or displacement of the members of a group, even if effected by force, is not necessarily equivalent to destruction of that group, nor is such destruction an automatic consequence of the displacement. This is not to say that acts described as ‘ethnic cleansing’ may never constitute genocide, if they are such as to be characterized as, for example, ‘deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part’, contrary to Article II, paragraph (c), of the Convention, provided such action is carried out with the necessary specific intent (dolus specialis), that is to say with a view to the destruction of the group, as distinct from its removal from the region. As the ICTY has observed, while ‘there are obvious similarities between a genocidal policy and the policy commonly known as “ethnic cleansing”‘ (Krstić, IT-98-33-T, Trial Chamber Judgment, 2 August 2001, para. 562), yet ‘[a] clear distinction must be drawn between physical destruction and mere dissolution of a group. The expulsion of a group or part of a group does not in itself suffice for genocide.’ ...”
(v)  Interpretation by other Convention States
46.  According to the material available to the Court, there have been only very few cases of national prosecution of genocide in other Convention States. There are no reported cases in which the courts of these States have defined the type of group destruction the perpetrator must have intended in order to be found guilty of genocide, that is, whether the notion of “intent to destroy” covers only physical or biological destruction or whether it also comprises destruction of a group as a social unit.
(vi)  Interpretation by legal writers
47.  Amongst scholars, the majority have taken the view that ethnic cleansing, in the way in which it was carried out by the Serb forces in Bosnia and Herzegovina in order to expel Muslims and Croats from their homes, did not constitute genocide (see, amongst many others, William A. Schabas, Genocide in International Law: The Crime of Crimes, Cambridge 2000, pp. 199 et seq.). However, there are also a considerable number of scholars who have suggested that these acts did amount to genocide (see, inter alia, M. Lippman, Genocide: The Crime of the Century, HOUJIL 23 (2001), p. 526, and J. Hübner, Das Verbrechen des Völkermordes im internationalen und nationalen Recht, Frankfurt am Main 2004, pp. 208-17; G. Werle, differentiating in Völkerstrafrecht, 1st edition, Tübingen 2003, pp. 205, 218 et seq., pointed out that it depended on the circumstances of the case, in particular on the scope of the crimes committed, whether an intent to destroy the group as a social unit, as opposed to a mere intent to expel the group, could be proved).
(b)  Universal jurisdiction for the crime of genocide
(i)  The 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention)
48.  The relevant provisions of the Genocide Convention read:
Article I
“The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.”
Article VI
“Persons charged with genocide or any of the other acts enumerated in Article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.”
(ii)  The 1993 Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY Statute)
49.  The relevant provision of the ICTY Statute provides:
Article 9Concurrent jurisdiction
“1.  The International Tribunal and national courts shall have concurrent jurisdiction to prosecute persons for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1 January 1991. 2.  The International Tribunal shall have primacy over national courts. At any stage of the procedure, the International Tribunal may formally request national courts to defer to the competence of the International Tribunal in accordance with the present Statute and the Rules of Procedure and Evidence of the International Tribunal.”
(iii)  Case-law of the International Criminal Tribunal for the former Yugoslavia
50.  The Appeals Chamber of the ICTY, in its decision of 2 October 1995 on the defence motion for interlocutory appeal on jurisdiction in the case of Prosecutor v. Tadić (no. IT-94-1), stated that “universal jurisdiction [is] nowadays acknowledged in the case of international crimes” (§ 62).
51.  Likewise, the Trial Chamber of the ICTY, in its judgment of 10 December 1998 in Prosecutor v. Furundžija (no. IT‑95‑17/1‑T), found that [it] has been held that international crimes being universally condemned wherever they occur, every State has the right to prosecute and punish the authors of such crimes. As stated in general terms by the Supreme Court of Israel in Eichmann, and echoed by a USA court in Demjanjuk, “it is the universal character of the crimes in question ... which vests in every State the authority to try and punish those who participated in their commission” (§ 156).
(iv)  Domestic law and practice in other Convention States
52.  According to the information and material before the Court, including material submitted by the Government which has not been contested by the applicant, the statutory provisions of numerous other Convention States authorise the prosecution of genocide in circumstances comparable to those in issue in the present case.
53.  In many Contracting States of the Convention, the prosecution of genocide is subject to the principle of universal jurisdiction, that is, jurisdiction for crimes committed outside the State’s territory by non-nationals against non-nationals of that State and which are not directed against the State’s own national interests, at least if the defendant was found to be present on its territory (for example Spain, France, Belgium (at least until 2003), Finland, Italy, Latvia, Luxembourg, the Netherlands (since 2003), Russia, Slovakia, the Czech Republic and Hungary). At the time of the applicant’s trial, numerous other States had authorised the prosecution of genocide committed abroad by foreign nationals against foreigners in accordance with provisions similar to the representation principle (stellvertretende Strafrechtspflege – compare Article 7 § 2 no. 2 of the German Criminal Code, paragraph 34 above), for example Austria, Denmark, Estonia, Poland, Portugal, Romania, Sweden and Switzerland (since 2000). Convention States which do not provide for universal jurisdiction for genocide include, notably, the United Kingdom.
54.  Apart from the Austrian, Belgian and French courts, it is in particular the Spanish courts that have already adjudicated on charges of genocide, relying on the principle of universal jurisdiction. The Spanish Audiencia Nacional, in its judgment of 5 November 1998 in the Augusto Pinochet case, held that the Spanish courts had jurisdiction over the case. On the subject of the scope of the Genocide Convention it stated:
“Article 6 of the Convention does not preclude the existence of judicial bodies with jurisdiction apart from those in the territory where the crime was committed or international tribunals. ... it would be contrary to the spirit of the Convention ..., in order to avoid the commission with impunity of such a serious crime, to consider that this Article of the Convention limits the exercise of jurisdiction, excluding any jurisdiction other than those envisaged by the provision in question. The fact that the Contracting Parties have not agreed on universal jurisdiction over the crime for their respective national jurisdictions does not preclude the establishment, by a State which is a party to the Convention, of such jurisdiction over a crime which involves the whole world and affects the international community and indeed all of humanity directly, as stated in the Convention itself. ... Neither do the terms of Article 6 of the Convention of 1948 constitute an authorisation to exclude jurisdiction for the punishment of genocide in a State Party such as Spain, whose law establishes extraterritoriality with regard to prosecution for such crimes ...” (International Law Reports, vol. 119, pp. 331 et seq., at pp. 335-36)